고령자의 판단능력 쇠퇴를 대비한 미래설계와 새로운 성년후견제도

Title
고령자의 판단능력 쇠퇴를 대비한 미래설계와 새로운 성년후견제도
Other Titles
Future Planning for the Time of Deterioration in Mental Capacity of the Elderly and Korean New Adult Guardianship System
Authors
제철웅
Keywords
후견대체제도; 신탁; 사전의료지시서; 특정후견; 성년후견; 유엔 장애인권리협약; Alternatives to Guardianship; Trusts; Advanced Directives to Medical Treatments; Specific Guardianship; Full Guardianship; UN Convention on the Rights of Persons with Disabilities
Issue Date
2015-03
Publisher
한양대학교 법학연구소
Citation
법학논총, v. 32, NO 1, Page. 149-175
Abstract
Traditional adult guardianship, even in western countries such as Germany and England, had targeted at either preventing persons with mental disabilities engaging in legal transactions for their protection or protecting the property of persons with spendthrift habits, regardless of any reasons, for their family members before reformation of guardianship system began from 1990s. The situation in Korea was not different; namely, family members of persons with dementia and brain injury have applied for the opening of guardianship to protect their relatives`` property for applicants`` own interest. However the use of guardianship has been strikingly rare in comparison of other countries, where more or less 100 persons per 100,000 inhabitants are under guardianship, because less than 10 per 100,000 inhabitants have been estimated to be under guardianship in Korea. It seems because most persons with severe mental or intellectual disabilities have been accommodated in closed facilities remote from local communities, which means that there is little needs to prevent them engaging in legal transactions. Such situations can result in few persons having resorted to the application of guardianship, even though adult guardianship was reformed as of 1st July 2013. Traditional guardianship does not fit the needs of elderly and persons with dementia, because they used to have no problems at decision making before the triggering events of dementia and used to express their antipathy to guardianship because of its targeted purposes. As aging societies in western countries progress, future planning schemes for the time of deterioration of capacity have been popular among elderly and persons with dementia and their families, which resulted in the use of enduring power of attorney, lasting power of attorney and advanced directives to medical treatments. This paper suggests that contractual guardianship and alternatives to guardianship have to be provided for elderly and persons with dementia as future planning schemes, and proposes concrete schemes relevant to them.
URI
http://kiss.kstudy.com/journal/thesis_name.asp?tname=kiss2002&key=3313309http://hdl.handle.net/20.500.11754/22609
ISSN
1225-228X
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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